Stop Your Backsliding, Europe

By Nils Muiznieks

March 14, 2016

STRASBOURG, France — The protection of refugees is an integral part of the international order for safeguarding human rights that countries developed in the aftermath of the atrocities of World War II. It’s in that context that European nations agreed on an array of rules on human rights and the treatment of refugees, resulting in probably the world’s best-functioning system for protecting them.

Now, however, the refugee crisis unfolding along the borders of the European Union has elicited a chaotic response. There is a clear danger that the union and its member states are losing their way, and are at risk of backsliding on fundamental commitments.

The deal the European Council is discussing with Turkey is a case in point. In exchange for concessions on visa requirements for Turks traveling to Europe, the European Union is asking Ankara to take back all migrants, including refugees from Syria, Iraq and Afghanistan, and others, who are currently crossing from Turkey into Greece by irregular means; the European Union proposes in turn to accept an equivalent number of Syrian refugees directly from Turkey.

Some union officials are portraying this deal as a good solution to the crisis. In reality, the automatic forced return that the deal allows is illegal and will be ineffective.

It is illegal because forced returns run contrary to the European Convention on Human Rights, which prohibits the collective expulsions of aliens. They also violate the right to seek asylum that was established in 1948 by the Universal Declaration on Human Rights, and contravene guarantees established by the 1951 United Nations Refugee Convention, which recognizes that seeking asylum can require refugees to breach immigration rules.

International law does not call into question a country’s right, in principle, to repatriate people who do not need international protection. But it does prohibit actions that are incompatible with states’ obligations under those conventions.

In 2002, the European Court of Human Rights ruled that Belgium had failed to take sufficient account of asylum seekers’ personal circumstances in a case involving collective expulsions. The Strasbourg court has continued to uphold that position in other cases. The latest of these, two years ago, concerned a group of Afghans, Sudanese and Eritreans who had entered Italy irregularly and were immediately expelled to Greece.

As for why the European Union’s deal with Turkey is unlikely to work, it is obvious that as soon as the agreement goes into effect, the Syrian refugees — together with their smugglers — will find other ways to reach Europe. They will keep taking dangerous routes because, risky as they are, these journeys offer more hope than the prospect of living for years in refugee camps or, worse, of being caught up in the continuing violence of the Syrian conflict.

No deal is better than a bad deal. Instead of racking their brains to find a legal fig leaf for measures like collective expulsions, the European Council’s members should have the courage to scrap the deal. Instead, they should adopt bold measures at the summit meeting this week that would radically shift the union’s approach to migration.

There is no magic wand that can solve this complex issue in the short run, but European countries are well aware that a range of longer-term solutions are available. Their first step should be to unite behind the negotiations toward a political solution to the conflict in Syria.

Then they must ramp up the relocation of asylum seekers from Greece and Italy to resettlement centers elsewhere in Europe. Member states should ensure that the so-called hot spots in Southern Europe have the capacity to assess asylum claims and return individuals who do not qualify for refugee protection. But this can be done only in full compliance with human rights standards, in particular honoring the prohibitions of torture or cruel, inhuman or degrading treatment.

A third measure must be to increase European Union support for Greece and Macedonia to help them handle the immediate humanitarian emergency. Turkey should also receive help, since it is the first entry point to Europe and is already hosting about three million refugees.

European countries must also add to the legal options available to refugees from conflict areas and neighboring countries seeking protection in our Continent. As the United Nations High Commissioner for Refugees (also known as the United Nations Refugee Agency) has proposed, tools like humanitarian admission programs, private sponsorships, family reunion policies, student scholarships and labor mobility programs can help refugees avoid resorting to smugglers. Initiatives like these are already working: Just last month, Italy admitted 93 Syrian refugees directly from camps in Lebanon. A high-level meeting to promote legal avenues for admitting Syrian refugees, to be held on March 30 in Geneva under the auspices of the United Nations Refugee Agency, is an opportunity for countries to make concrete pledges.

It’s vital that the European Union states find ways to coordinate and share responsibility for tackling the migrant crisis. That will include establishing registration centers in the main countries of arrival, and setting up a system to distribute asylum requests equitably across Europe, among both union members and nonmembers.

These measures will require political leadership, as well as considerable resources. But if the chaotic arrivals and states’ beggar-thy-neighbor responses continue, together with backsliding on human rights commitments, they will eventually impose even greater political, social and economic costs.

All Europe’s states are bound by the European Convention on Human Rights and the United Nations Refugee Convention. To hold true to these moral and legal commitments, they must meet this crisis with policies that comply with them.

Nils Muiznieks is the Council of Europe commissioner for human rights.